Antitrust

Background

What
is Antitrust Law?Antitrust
law – sometimes referred to as "competition law" – focuses on the statutes and
regulations that promote fair and open competition within different industries
and geographic markets. Antitrust laws scrutinize monopoly activity,
price-fixing and collusion, bid rigging, merger plans between business, price
discrimination, group boycotts, and a range of other business conduct that,
depending on the circumstances and the impact on the consumer, may run afoul of
the law. There is a core set of relevant statutes –perhaps most central is the
Sherman Act – and a little over a century of case law fleshing out the rules; state antitrust laws tend to follow federal statutes.

Due to
its focus on markets and prices, antitrust law often overlaps with the field of
economics. While most antitrust attorneys will report that an economics
background is not essential for the practice – and, indeed, many attorneys do
not have such a background – those with economics training may find themselves
more comfortable initially with issues related to antitrust law. The field also
extends into the world of intellectual property (IP), as IP protections offer a
monopoly to the owner of the IP for a certain period of time.

The
globalization of business operations and markets has led to increased
international regulation of antitrust rules. Even a practice based in the US
may handle cross-border transactions, EU regulations, and/or analysis of
international product and geographic markets.

What do antitrust lawyers do?It
might be helpful to think of antitrust practice as being divided into two broad
categories: 1) litigation/investigations, and 2) mergers.

In the
first category, an attorney can expect to use the tools of a litigator to help
a client either defend or prosecute antitrust violations, or to pursue or
counsel a person/company through investigations. The litigation matters – often
referred to as "behavioral" or "conduct" matters – could take the form of one
competitor in an industry alleging unfair monopolistic or price-fixing conduct
on the part of another competitor. Or the suit could be an enforcement action – brought pursuant to civil or criminal laws – in which the government alleges
that a business has violated antitrust laws or regulations. Such suits might
call on an attorney to use fundamental litigation skills (e.g., legal research
and writing, factual investigation, documentary discovery, taking depositions,
arguing motions in court, engaging in negotiations) to advance their client's
case. A litigator might also expect to work with economic experts to help
establish or defend the client's case. Often the experts do the detailed
analysis of product or geographic markets; it is the work of the attorney to
present this analysis in a compelling way to the fact-finder. The world of
antitrust law is marked by relatively few statutes and regulations; it is not
an area with an enormous regulatory overlay like, for instance, environmental
law. Discovery in antitrust cases can be especially voluminous, covering issues
related to supply chains, pricing, product development and marketing,
competitive intelligence, shareholder meetings (if relevant), and emails sent
in the ordinary course of business. These suits or investigations may take
several years to be resolved.

The
second category, mergers, calls on antitrust attorneys to advise their client
in the pendency of a mergers & acquisitions deal. Attorneys will file documents with the
appropriate regulatory authorities regarding the merger, conduct "due
diligence" (similar to discovery in the litigation context) regarding the
merger to learn about relevant facts related to product and geographic market,
advise on potential regulatory issues, and (if needed) negotiate an outcome
that allows the merger to go through. Because this practice is related to the life cycle of M&A deals,
clearance work is more active when the economy is good, as deal flow tends to
be greater during these times. Typically, merger clearance takes place on a
more accelerated timeline than litigation or investigations;an attorney in
this field can expect to resolve matters quickly and then move onto the next
project.

Antitrust
lawyers often cite as an attractive feature of their practice their need to
learn about different business industries in great detail. To work on a
litigation matter or to handle a merger clearance the attorney must often dive
into the specific businesses at the heart of the matter and also become very
familiar with the broader industry in which that business operates. Healthcare,
technology, energy, credit cards, and publishing are some industries that have
seen a good amount of antitrust activity recently.

Where it's HotInvestigations and litigation work is prevalent in DC. But
antitrust work more broadly can be found in many places in the US and around
the world. Additionally, many in-house positions may value an attorney with
antitrust experience, as businesses may face antitrust issues in their ordinary
course of business.

Georgetown
Law Practice Area Podcast with Meghan Edwards-Ford, Antitrust Associate at
Hogan Lovells (found on this page)

Representative
Employers/Opportunities

Government

The
main regulators at the federal level are the Federal Trade Commission and the
Department of Justice. Other agencies may handle industry-specific antitrust
issues that arise as part of compliance programs or rate-making duties. At the
state level, many state attorneys general are active in bringing
antitrust and other consumer actions;there may be state laws that are
enforceable in addition to federal laws.

Federal Trade Commission –The Bureau of Competition works on mergers and litigation
matters related to antitrust. There are several sections within the Bureau, including
mergers sections separated by industry, as well as compliance and litigation
sections. Regional offices in Seattle, Los Angeles, San Francisco, and New York
handle investigations.

Department of Justice (DOJ) - Antitrust –The Department of Justice
handles litigation matters related to antitrust out of Main Justice in DC. Civil Sections are separated by industry;there are also criminal
antitrust attorneys in DC and the Chicago, New York, and San Francisco offices.

Chambers and Partners –Top
Antitrust Firms.
In addition to defense firms that defend corporations and/or individual facing
antitrust scrutiny from regulators or competitors, there are law firms that
litigate class action matters against business on behalf of consumers. Some of
these plaintiff-side firms are captured in Chambers and Partners;others can be found here.